No. 1.2272 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

\JILTJLAM L . BROTHERS , 

P1ainti.f f and Respondent, 

-vs - 

SURPLUS 'JTACTOR PARTS COKPORATION, 

Defendant and Appellant. 

Appeal from: District Court of the Second Judicial District, 

Honorable John B. McClernan, Judge presiding. 

Counsel of Record: 

For Appellant: 

Poore, McKenzie & Roth, Butte, Montana. 

Allen R. McKenzie argued, Butte, Montana, 

For ~espondent: 

Corette, Smith & Dean, Butte, Montana. 

Gerald R. Allen argued, Butte, Montana. 

Submitted: October 18, 1972 

Decided: FEB 2 7 1973 

Filed : FEB 2 7 1973 

&P* erk 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal from a judgment entered for plaintiff 

William L. Brothers in the amount of $3,500, on a jury verdict 

in the district court of the second judicial district, county 

of Silver Bow. From that judgment and from the court's denial 

of a new trial, defendant Surplus Tractor Parts Corporation 

appeals. 

The action was brought to recover damages for claimed 

defective replacement tractor parts. Initially, the action was 

brought on a tort theory of negligence which was enlarged during 

the course of trial to include an additional contract theory of 

breach of warranty. 

Defendant Surplus Tractor Parts Corporation hereinafter 

called Surplus, has assigned four grounds of error: 

1. The trial court erred in allowing a variance between 

the claim pleaded, which was based on negligence, and the claim 

relied on at trial, which was based on breach of warranty. 

2. The trial court erred in submitting jury instructions 

which were based on both theories and were conflicting, inconsistent and confusing. 

3. The trial court erred in refusing to grant a new trial. 

4. The evidence was not sufficient to justify the verdict 

on either contract or tort liability, or the amount of damages. 

In September 1968, plaintiff William L. Brothers, hereinafter called Brothers, purchased from Surplus fourteen new rollers 

and other related tractor parts to be used as replacement parts 

on his TD 24 Tractor, at a total cost of $3,000, including freight. 

Brothers claimed to have installed and lubricated the rollers in 

accordance with competent mechanical practice. Surplus claimed 

that both the installation and lubrication were faulty. 

Brothers claimed that after about 200 hours of operation, 
six of the rollers began leaking oil. He notified Surplus and 

received six new seals. Shortly after Brothers replaced the 

seals, the rollers again began to leak and he sent them back to 

Surplus for inspection. Upon the subsequent return of the 

rollers from Surplus, Brothers claimed they began leaking oil 

before they could be installed or used. Brothers then bought 

six rollers from another firm and installed them on his tractor. 

At trial, Brothers testified that none of the rollers 

bought from the other firm were leaking oil after 900-1000 hours 

of use, but that seven of the eight remaining rollers purchased 

from Surplus were leaking oil. Brothers contended this kind of 

roller should last from 3000 to 4000 hours. He claimed total 

damages of over $9,000 due to the defective rollers and the consequential loss of employment while the tractor was inoperable. 

The trial court issued seventeen instructions to the jury, 

including stock instructions. We will briefly examine the instructions relevant to assignment of error No. 2, in general terms. 

Instruction No. 4 defines negligence and raised contributory negligence. 

Instruction No. 5 defines contributory negligence. 

Instruction No. 6 defines proximate cause. 

Instruction No. 8 is a short statement about warranty. 

Instruction No. 9 is a short statement on express warranty. 

Instruction No. 10 reads: "You are instructed that in this 

case the plaintiff seeks to establish liability by showing a 

breach of warranty. A breach of warranty may be established 

without proof of negligence on the part of the defendant." 

Instruction No. 11 instructs that there is an implied 

warranty of merchantability in this case. 

Instruction No. 12 instructs that plaintiff and defendant 

are bound by express warranty in defendant's catalogue. 
Instruction No. 13 instructs that if improper use of the 

rollers is found, plaintiff cannot recover under breach of warranty. 

Instruction No. 14 on damages reads: 

"You are instructed that the measure of damages 

arising from the breach of an obligation arising 

from contract is the amount which will compensate 

the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary 

course of things, would be likely to result therefrom. " 

Instruction No. 15 reads: 

"The law does not permit you to guess or speculate 

as to the cause of the damage to the tractor parts 

in question. If the evidence is equally balanced 

on the issue of negligence or proximate cause, so 

that it does not preponderate in favor of the 

plaintiff, then he has failed to fulfill his burden of proof. 

"To put the matter in another way, if after considering all the evidence, you should find that 

it is just as probable that either the defendant 

was not negligent, or if it was, that its negligence was not a proximate cause of the accident, 

as it is that some negligence on its part was such 

cause, then the case against the defendant has 

not been established and your verdict must be for 

the defendant." 

Instruction No. 16 reads: 

"The reasonable cost of repairs necessary to 

restore the property to the condition it was in 

immediately before the damage, and the reasonable 

value of loss of use pending repairs, are the 

determining factors in arriving at the amount of 

damages. 

"It is only the reasonable and necessary cost of 

making such repairs, within a reasonable period 

of time after the damage occurred, that can be 

allowed; and the repairs allowable are only those 

which are actually necessary to put the property 

back into as good condition as it was before the 

damage occurred. The owner is not entitled to 

have the property put back into better condition 

than before the damage. Nor is the owner entitled 

to be compensated for loss of use beyond the time 

reasonably required to complete the necessary 

repairs. " 

In light of the evidence presented at trial and considering the effect the instructions would have on the understanding 
of an average juryman as to what determinations of fact he was 

required to make in arriving at a verdict, we find merit in the 

second assignment of error. Montana law pertaining to error 

in jury instructions as it has been construed by this Court is 

that the test of a jury instruction is not what the ingenuity of 

counsel for appellant can make of it, but rather the ordinary 

understanding of the instructions taken as a whole. Long v. 

Byers, 142 Mont. 46, 381 P.2d 299. That is the general rule. 

Here, we find the jury instructions, taken as a whole, to be 

inconsistent and contradictory to each other to a degree that 

would confuse the average juryman and require reversal. 

Respondent Brothers contends in his brief: "If error 

was committed by the presentation of negligence instructions, 

Surplus may not avail itself of the invited error". In view of 

the fact that it was Brothers who originally introduced the negligence theory in his complaint and then changed to a contract 

theory at trial, he cannot here successfully contend that Surplus 

invited error in defending on both theories. 

Appellant's first and second assignments of error are 

related in that the basis of objection to the jury instructions 

arose as a result of variance at trial between the theories of 

tort and contract. The second assignment of error pertaining to 

the jury instructions is alone grounds for granting a new trial, 

consequently the first assignment of error pertaining to the 

court's allowing amendment of the pleading to conform to the 

proof becomes less important to the outcome. However, since it 

is a related issue, we will comment briefly on it. 

Montana rules of civil procedure, based on federal rules, 

are essentially notice pleading statutes rather than the more 

formal code or fact pleading statutes in effect in many jurisdictions. Under Rule 8(a), M.R.Civ,P., a pleading requires only: 
1. A short and plain statement of the claim showing 

that the pleader is entitled to relief. 

2. Demand for judgment for the relief to which he deems 

himself entitled. Under this rule, relief in the alternative 

or several different types of relief may be demanded. 

Under Rule 15(b), M.R.Civ.P., pleadings may be amended to 

conform to the evidence when issues not raised by the pleadings 

are tried by the express or implied consent of the parties. 

The Montana Rules of Civil Procedure with the liberal 

construction they have been given by this Court, have often saved 

needless litigation over purely formal procedural matters by 

allowing the courts to directly consider the merits of the case. 

Reilly v. Maw, 146 Mont. 145, 405 P.2d 440. 

However, it was neither intended nor advisable that 

counsel in this state neglect to thoroughly research their cases 

before drafting pleadings, in reliance on the liberality of the 

courts in granting amendments. 

In Gallatin Trust and Savings Bank v. Darrah, 152 Mont. 

256, 261, 448 P.2d 734, the Court stated: 

"It is generally accepted that the appellant 

cannot recover beyond the case stated by him 

in his complaint. 

" * * * this Court believes that fair notice 

to the other party remains essential, and pleadinqs will not be deemed amended to conform to 

the evidence because of 'implied consent' where 

the circumstances were such that the other party 

was not put on notice that a new issue was being 

raised. 1A Barron & Holtzoff S 449; Otness v. 

United States, D.C. Alaska, 1959, 23 F.R.D. 279.'' 

(Emphasis added). 

Rule 15(b), M.R.Civ.P., in Montana and in federal jurisdictions generally, has been applied liberally in favor of allowing amendment of pleadings to conform to the evidence. In Union 

Interchange, Inc. v. Parker, 138 Mont. 348, 357 P.2d 339, we 
stated that it was the rule to allow such amendments and the 

exception to deny them. In Nester v. Western Union Telegraph 

Co., (D.C. Ca1.1938) 25 F.Supp. 478, amendment was allowed to 

change the theory of liability upon which the plaintiff sought 

recovery from tort to contract. See 6 Wright & Miller, Federal 

Practice and Procedure: 5 Civil 1493. 

Rule 15(b), M.R.Civ.P., should be applied liberally to 

avoid the old requirements of formalism and to allow litigants 

to proceed efficiently on the merits of the case, However, 

leave to amend pleadings under Rule 15(b), cannot be granted 

arbitrarily or perfunctorily because the result would create 

a question of due process in cases where the defendant may not 

have an adequate opportunity to prepare his case on the new 

issues raised by the amended pleadings, therefore the facts 

attendant to each case become controlling. 

As a practical matter, the instant case amply demonstrates 

the perils-of changing the theory of liability during the course 

of trial. Jury instructions by both litigants relating to both 

theories may be submitted and given to the jury, which when read 

as a whole become contradictory and confusing. 

In view of our holding on assignment of error No. 2, we do 

not deem it necessary to comment further on assignment of error 

No. 1, as it will not arise on retrial and in view of a retrial 

on the merits we will not comment on assignments of error Nos. 3 

and 4. 

The judgment of the district court is reversed and the 

cause remanded for a new trial. 

Associate Justice 
r-7 ye concur : n I 

Chief Justice 

Associate Just$es i;; j